Fifty-one years ago this week, the United States Supreme Court ruled that the Constitution protected a person’s right to choose to have an abortion.
This happened after a woman under the pseudonym "Jane Roe,” who was later revealed to be Norma McCorvey, got pregnant with her third child in 1969. At the time, abortion was illegal in her home state of Texas, aside from the “life of mother” exception. At 21, she had a physically abusive husband. After dropping out of high school, she bounced around from unstable service jobs. Since she couldn’t get an abortion, she sought out the help of an adoption lawyer. This led her to being approached by other lawyers who were specifically looking to find a case that would challenge widespread abortions bans in the United States.
They eventually filed a lawsuit in Texas which made its way to SCOTUS. A few years later, on January 22, 1973, the Supreme Court ruled 7-2 in Roe’s favor. The ruling stated that the Constitution does support the right to choose to have an abortion until a fetus becomes viable, a right that was based on a right to privacy contained in the Due Process Clause of the 14th Amendment. As a consequence, abortion bans were ruled unconstitutional. McCorvey never got her abortion and gave her child up for adoption. But ultimately, McCorvey’s lawsuit paved the way for women in the future to have a legal right to abortion care as it challenged the constitutionality of the laws that criminalized it.
In another world, the country could have been celebrating this landmark ruling this week. But history had other plans. On June 24, 2022, the SCOTUS ruling in Dobbs v. Jackson Women’s Health Organization — a case that challenged a Mississippi ban on abortion at 15 weeks of pregnancy — overturned Roe v. Wade, which effectively ended the federal constitutional right to choose to have an abortion in the United States.
But nothing lasts forever and laws are always evolving in the courts of the United States. Could the landmark ruling be reinstated in the future?
If it really wanted to, the Supreme Court could say it was wrong in overturning Roe v. Wade.
Technically, yes — but the path to such a future in which Roe v. Wade's right to abortion in part of our reality again would be long. David S. Cohen, a professor of law at Drexel Kline's School of Law, told Salon, the U.S. Supreme Court can say whatever it wants. If it really wanted to, it could say it was wrong in overturning Roe v. Wade.
“They could do that, absolutely, but it would obviously require new justices on the Court,” he said. “Or a completely, unlikely, change of mind by justices currently on the Court.”
A more realistic pathway to reinstating Roe v. Wade, or bringing another case in front of the U.S. Supreme Court that could set another pro-abortion precedent with widespread protections, starts with electing a president who will appoint justices that will get the U.S. to such a place. Alternatively, a president who will elect Congress members who will pass a law that preempts state laws. Those are really the only two viable options, Cohen said.
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“You either have a Congress passing a law that says there's a national right to abortion,” he said. “Or there are openings on the Supreme Court, caused by retirement or another reason for leaving the bench for conservative justices, filled by justices who are more liberal and feel that there's a right to abortion.”
"If the composition of the Supreme Court changed, it could consider similar facts to Roe."
There will be no shortage of opportunities for the Supreme Court to rule in favor of overturning Dobbs v. Jackson Women’s Health Organization — or not. For example, this year it will have to consider whether or not the Emergency Medical Treatment and Labor Act (EMTALA) takes precedence in hospitals or if state laws do. In this case, Cohen said, the Supreme Court could say “this is proof that Dobbs didn't work, because we've got these problems caused by the conflict between federal law and state law.”
“Now, obviously, it's not going to happen with this case because the Supreme Court hasn't changed,” he said. “But it is an example of how overturning Dobbs can be a part of a wide variety of cases.”
Seema Mohapatra, a law professor at the SMU Dedman School of Law, told Salon that there are other ways that the outcome of Roe v. Wade can be reached. For example, there are theories that abortion rights can be found through “equal protection.”
“So not allowing the right to an abortion is disadvantageous to one group over the other,” she said. “If the composition of the Supreme Court changed, it could consider similar facts to Roe and find a right that is not based on what Roe was based on.”
In an ideal world, this could lead to even stronger protections. While Roe v. Wade was a start, many believed it was flawed. Particularly because the ruling provided people with the right to choose an abortion — and didn't include the right to access it. Thissignificantly impacted people at or below the poverty line because Medicaid’s coverage for abortion care is very limited.
Mohapatra said unfortunately, she predicts very egregious cases will have to reach the Supreme Court to understand the nuance of Dobbs. For example, she noted that Dobbs didn't say there has to be a health exception for an abortion. But a horrible case, where women are dying, could possibly clarify that.
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“I find it very unlikely that in the next couple of generations that we're going to have a case come up and have the Supreme Court find that there is an abortion right embedded in the Constitution,” she said. “Even if they find it from another theory that wasn't considered in Roe.”
Mohapatra emphasized that people have to think “long term” for this, and that progress might not happen in the next 10 to 15 years — but it could happen in another 50.
“We're getting to another election, and unfortunately, people don't realize how important they are in terms of how the courts are — not just the Supreme Court, but how the federal courts are composed,” she said. “And how much who’s president can make a difference.”
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